William Erle.

The law relating to trade unions online

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Section i. Formation and Force of Unions i

„ 2. Right to Free Course for Trade in General . . 5

„ 3- Right to Free Course for Trade in Labour (that
is, to freedom to dispose of labour and capital
according to the will of the owner) .... 11

„ 4. Proceedings for Violation of the Right to Free-
dom for the Course of Trade 28

(a) Action for Civil Wrongs.

(d) Indictment for Criminal Wrongs other

than Conspiracy.
(<:) Indictment for Conspiracy.

5. Statutable and Professional Restraints of Free-

dom to Labour 42

(a) Restraints by Law, as by Factory Acts.
(1^) Professional Fees.

6. The Roots and Crowtli of the Connnon Law . 47





Section i. Statutes prior to 6 George IV. c. 129 .... 55
„ 2. The Statute 6 George IV. c. 129 56

(<?) The Section containing Prohibition.
(/') The Sections for Permission.

3. The Statute 22 Victoria, c. 34 75

4. The Statute 18 & 19 Victoria, c. 63, s. 44 (the

Friendly Societies' Act) 76


Some Account of the Trials of R. z'. Rowlands and Others,

and R. '■. Dufifield and Others 8r


Sections 3, 4, 5, of the Act 6 Geo. IV. c. 129 .... 88

Section 44 of the Act 18 & 19 Vict. c. 63 f;o

Section i of the Act 22 Vict. c. 34 91


For the performance of their duty under Her
Majesty's Commission the Trade Unions Com-
missioners had to ascertain the state of the
existing law, both Common and Statute, con-
nected with Trade Unions, in order that amend-
ments might be proposed with knowledge of
their probable effect.

For this purpose I prepared the following
Memorandum, with the intention of its being
laid before my colleagues, and forming part of
the proceedings of the Commission. It has,
however, so grown under my hand as to em-
brace some topics beyond the immediate scope j
of our Commission ; and I now offer it on my j
own responsibility. I

Many of the principles were obtained by my
own induction, and arc expressed in words '




whicli I composed ; the imperfections are there-
fore mine.

In stating the common law, I have aimed to
assign some of the reasons for it, both with a
view to show that the law is as stated, and
also in order to foster loyalty, which increases
with the opinion that there is reason for the law.
Human life is a progress between two sets of
physical and moral agencies perpetually striving
against each other — the one on the side of
falsehood, malice, and destruction ; the other on
the side of truth, kindness, and health : and the
law, if wisely made and properly administered,
maintains truth and kindness and health, and
so, among other things, helps persons of honest
industry to obey each his own will.

In the hope, also, of lessening confusion in
the legal reasoning on the lawfulness of certain
sets of circumstances, I premise ai few verbal
explanations. First — there are terms, of fre-
quent recurrence in that reasoning, each denot-
ing different sets of circumstances — some lawful,
some unlawful ; so that if any of these terms are
used without discriminating between the senses
of which they are capable, confusion follows :
"restraint of trade," "trade unions," "strikes,"
and "combinations," are examples of such
terms. Secondly — as to " rights " and " duties,"
"■wKonsfs" and "crimes." In this Memorandum


" right " means a power which is vested in a
person by law, and is created entirely by opera-
tion of law. Every right correlates with a
"duty," A "wrong" is a violation of a right
not amounting to a crime, being a civil injury :
a " crime " is such a violation of a private right
or of a duty as affects the interest of the public :
it is known in practice to be classed as a
crime ; but the essence of criminality has not
been defined at common law. And thirdly —
in law, labour and capital are not contradis-
tinguished : neither the rights nor the duties of
a person are affected by being placed in the
class of either labourer or capitalist.

I intended in writing this Memorandum to
state the law as it is, and only rarely to express
an opinion as to what the law ought to be.


Dccanhcr, 1868.




I. Formation and Force of Unions. — As the
term "Trade Union" denotes many forms of
association for various purposes — such as mutual
assurance against either the accidents of hfe or
the accidents of trade, or such as the regulation
of the terms of hiring or of the supply of labour —
it may be well to premise that the term itself
affords no indication in respect of lawfulness.
Union by itself is presumed to be lawful : the test
of unlawfulness lies in the purpose of the union.

A person becomes a member of a union by
consenting to transfer a part of his own power
over his own rights to the governing body of the
union, which may be the general assembly or a
committee of delegates. The legitimate power
of the union over its members is in proportion
to each member's power over his own actions —
that is, to the quantity of the free-will of each

Chah. I.

5 I. Forma-
tion and
Force of



Chap. I.



§1. For ma-
tt nit and
Force nf

member supposed to be transferred by him to
the union ; and the transfer is intended to relate,
for the most part, to power over the money or
the work of the individual member. The force
acquired by combination is incalculably greater
than the sum of the powers so transferred to
the union by each individual, as is exemplified
by soldiers for right, and by robbers for wrong.
This multiplication of force by combining is a
reason why combination for a purpose either
of crime or of some classes of wrong is made
criminal, the law prohibiting such combination
having the expediency of checking wrong in its
inception. At times, unions acquire power over
both members and non-members by terrifying.
Such power is in proportion to the terror ; and
terror for the most part decreases as knowledge
of the extent of the danger, coupled with
reliance on the law for protection, increases.

A union operates by way of agreement. If
all its purposes should be free from unlawful-
ness, it would be like to a partnership agree-
ment, for breach whereof the remedy is mostly
in chancery ; if any of its purposes should be
unlawful, whether criminal or not, it would be
so far void for illegality ; if any of its purposes
should be criminal, the concert would be a crime.

With respect to rights to property, they are
not direct!}' affected by the purposes of the


owner of the property ; but as unions operate by-
way of agreement, and as the vahdity of agree-
ments depends on (among other things) the
lawfulness of the purposes comprised in such
agreement, the purposes of the unions may thus
indirectly affect the rights of the members
thereof to the joint property of the union.
Accordingly, members of lawful unions have
rights to the property of the union the same as
other subjects to other joint property. Members
of unions for unlawful purposes have no right to
assistance from any court for the fulfilment
of the unlawful purposes ; but for all other
purposes except the unlawful (if they can be
distinctly severed) they are, I believe, in the
same position as unions for lawful purposes.

Although these rights exist in law, it is diffi-
cult in practice to enforce them. In most unions
the members are being changed perpetually by
outgoing and incoming, while no provision has
been made for transmission of rights of property;
and probably no such provision could be effec-
tive without the aid of an Act of Parliament
analogous to the Joint Stock Companies Acts.
A remedy for violating a right of property
cannot be enforced w-ith certainty unless the
owners of the right, when the alleged wrong was
done, are ascertained.

As regards violations of the rights of property

B 2

Chap, I



§ I. Forma-
tion and
Force o/


Chap. I.



^ I. Fonna-
tion and
Force of
I 'nions.

belonging to the union done by members of the
union — as, for example, by treasurers, clerks,
and other such officers — there is the difficulty
arising from the joint-ownership on the part of
the wrongdoers. When the wrong is by the
abstraction of property, neither trespass nor in-
dictment can be maintained by the union against
a member thereof for such abstraction. An
attempt was made to remove this difficulty by
section 44 of 1 8 and 19 Vict. c. 6t^ (the Friendly
Societies Act), but this section has been found
by experience not to afford a satisfactory re-
medy ; and I venture to suggest that the law
might be amended if it were enacted that a
joint owner, under certain circumstances doing
that which would be larceny or embezzlement as
between him and the other joint owners, should
be guilty notwithstanding his joint ownership.
I see no reason why in the case of some societies,
to be defined in the statute, a member taking or
embezzling the goods of the society against the
will of the other members, secretly with intent
to deprive them of their right, and to change
the property therein contrary to law, should not
be made as responsible, civilly and criminally,
as he would have been if no society had existed.
If this was the law,^ the trade unions would have

^ Since this Memorandum was written, a statute to this effect
(31 & 32 Vict. c. 116) has been passed, and under the statute a
Treasurer of the Operative Bricklayers' Society has been con-


the usual protection of the law against violation
of rights of property by their own officers.

This protection might be supplemented by
giving also to some societies a summary remedy
analogous to the right given to friendly societies.

The test of unlawfulness is to be found in
the purposes of the union. For example, if
money is to be collected for the purpose of
obtaining useful information, and regulating ac-
cordingly the supply of labour, the union is so
far lawful ; if the purpose is to apply its money
to the injury of others — as, for instance, in
burning the property or destroying the lives of
persons obnoxious to the union — the union is
so far unlawful. About such cases as these
there is probably no dispute. But doubt about
the lawfulness of the union arises when there
is a purpose to restrain trade.

II. Right to Free Course for Trade in General.
• — Restraint of trade, according to a general
principle of the common law, is unlawful. I
say " a general principle," because the term
" restraint of trade " is of very wide extension,

victed (R. v. Blackburn, C.C.C. Dec. 17, 1S68). Now, there-
fore, unions have the aid of the criminal law against stealing ;
and if they remove illegality which is apparent on their rules
they may, according to the decision in Farrer v. Close (see p. 79,
/>os/}, have aid from the 44th section of the friendly Societies'
Act, 18 and 19 Vict. c. 63.

Chai'. I.


§ I. Forma-
tion mid
Force of

§2. Right to
Free Course
for Trade in


Chap. I.


\ 2. Right to
Free Course
for Trade in

and applies to a multitude of relations between
man and man, relations which vary in countless
permutation by the addition or subtraction of
a circumstance ; and the unlawfulness depends
on the degree of restraint resulting from the
circumstances. Questions of degree cannot be
defined without a standard of measure : unlaw^-
ful restraint of trade, therefore, cannot be de-
fined, but it may be described ; and the best
description I can offer is this, that at common
law every person has individually, and the public
also have collectively, a right to require that
the course of trade should be kept free from
unreasonable obstruction.

Neither a grant of this right, nor a pro-
hibition of the violation thereof, is found in
the direct terms of a law ; but proceedings for
the violation of the right are recorded, and in
these proceedings the grant of the right, and
the prohibition of the violation thereof, are
assumed to exist. The right to security for
person and property is not granted affirma-
tively, but assaults and thefts are frequently
subjects of recorded legal proceedings in which

i this right is assumed. The law has been de-
scribed as jiibciis Jioncsta, proJiibeiis contraj'ia :

I this may be true of written law, but in un-

! written law the Jussam is to be found in suits

I for violating \\\q proJiibitiim.


Many examples might be given of other
rights to a free course in other matters which
are known to the law not by express grant, but
by enforcement of prohibition against violation
thereof. The common law rights to a free course
for passage on highways, or for light to the eyes,
or for air to the lungs, or for the flow of the
stream of water to the land of riparian pro-
prietors, are not created by express grant, nor
are they more capable of being perceived by
any direct sense than the right to a free course
for trade, there being no property either in any
particle of light, or in air, or in running water,
or in any passage on ways ; but the existence of
each of these rights is made known by actions
or indictments for the infringement thereof It
may be worth adding, that the right to a free
course for air or water is a right to quality as
well as quantity. If either air or water is fouled
in an unreasonable degree, action lies for a wrong
in the class of nuisances ; and the degree which
is unreasonable is constantly shifting according
as density of neighbourhood increases. These
are examples of the application of the law re-
lating to other nuisances, besides those relating
to the free course for trade, in respect of air or
water, light or passage, above referred to.

The right to a free course for trade is of
great importance to commerce and productive

CiiAr. i.

§ 2. Right io
Free Course
for Trade in


Chap. I


§ 2. Right fo
Free Course
for Traiie .«

industry, and has been carefully maintained b}-
those who have administered the common law
during the time to which our records extend.
The judgment of Parker, C.J., in Mitchel v.
Reynolds (i P. Williams, i8i), is an authority
showing the principle, and a limitation of it.
The question was, whether a contract operating
as a partial restraint of the trade of the vendor
of the good-will of certain premises was valid ;
and the answer was in the affirmative, provided
the restraint was not unreasonable with regard
to the public interest, and not greater than was
required for the interest of the purchaser (the
party restraining), and provided also that the
party restrained (the vendor) received value for
that which he gave up. In that judgment pre-
vious cases showing restraint of trade to be
illegal are examined, and the reasons for estab-
lishing the exceptive limitation are shown to
be founded on the interests of truth and ex-
pediency. The report of this case in SmitJis
Leading Cases (vol. i. p. 356, 6th ed.), collects the
principles of numerous decisions following Mit-
chel V. Reynolds, and defining more exactly
the exceptive limitation.

The laws relating to fairs, markets, and
staples ; the prohibitions against forestalling,
engrossing, regrating, monopolies, and all similar
contrivances for affecting prices otherwise than by


competition, have their origin in a purpose of
keeping the course of trade free from obstruc-
tion, and enabling buyers and sellers to deal
on the terms which free competition determines.
These rules were made for the purpose of
securing supply in times when stores were small,
and transit difficult, and famine near if supply
was delayed. Now, their utility, and therewith
their operation, has nearly ceased under altered
circumstances from the advance of civilization,
it being found that supply is best secured by
leaving mercantile speculation free. Accordingly,
it was ruled by Lord Ellenborough in R. v.
Cleasby (about the year 1812), that the engros-
sing of all the oil of a whaling season was no
offence at common law in the then state of
society; and he so held notwithstanding the
case of R. v. Waddington, quoted below. The
Legislature, by the 12 Geo. IIL c. 71, repealed the
statutes declaratory of the common law against
engrossing ; and the 7 & 8 Vict. c. 24, s. i,
enacts that no suit, civil or criminal, shall lie
for engrossing. At the same time, by s. 4, the
common law protection of the free course for
trade against obstruction by means of falsehood
is expressly continued. (See Russell on Crimes,
by Greaves, b. ii., c. 19, vol. i., p. 252, 4th ed.)

A free course for trade has been carefully
maintained from the earliest times. Lord Coke

Chai'. I.


§ 2. Right to
Free Course
for Trade in



Chap. I.


§ 2. Right to
Free Course
for Trade in

ha.s collected some early authorities in his TJiird
Institute, c. 89, on Forestalling. He goes back
to the time of Ethelstan, and refers to laws
in the time of that king, and also to laws in
the time of the Conqueror, making provision
for buying and selling in open market, by for-
bidding traffic above a certain value outside of
a town unless with a witness. The clause in
Magna Charta securing to each person his liber-
ties is construed by him to include the right to
a free course for trade possessed by the subjects
of England {Second Institute, p. 47). There
is also a conviction reported by him in the 43d
Assize of Edward III., for affecting the market
price of an article by spreading a false report.

To the authority of Lord Coke I would add
a reference to the reports of some cases ; and
among them to Davenant v. Hurdis, in the time
of Elizabeth (Moore, 576), deciding that a
bye-law of the Merchant Taylors' Company,
restricting the dressing of cloths to the freemen
of the Company, was void for monopoly ; and
to the City of London's case (8 Co. 121 b),
deciding that a charter from the King, granting
that none but those free of the City should
trade therein, was void for the same reason ; also
to the case of Monopolies (11 Co. 87^), where
Lord Coke refers to a very ancient law, " You
shall not take in pledge the nether and upper


millstone, quia aniinam siiani apposnit tibi"
(Deut. xxiv. 6) and says that by this it appears
that every man's trade maintains his life, and
that therefore he ought not to be deprived nor
dispossessed of it any more than of his life. I
would also refer to R. •z^. Waddington (i East, 143),
in the time of George III., where the defendant
was convicted and punished for engrossing hops
— that is, buying them wholesale with intent to
sell them again wholesale. The arguments that
were used by counsel and adopted by the Court
in these cases, in support of the right to a
free course for trade, show that the governing
intention of those who administered the law
was to promote the good of the community
according to the light of their time, without
partiality for any class, unless more scrupulous
care for the protection of the less rich against
the more rich class can be considered partiality.
The intention of the judges in Waddington's
case was in this sense entirely beneficent, al-
though the prohibition there enforced against
buying wholesale with intent to sell again whole-
sale has been since found under altered cir-
cumstances to be a mistake, as ^bove explained.

III. Right to Free Course for Trade in Labour.
— Under the general principle, operating upon
all trade, which has been considered above, the

Chap. I.


§ 2. Right to
Free Course
for Trade in

§3. Right to
Free Course
for Trade in


Chap. I.


§ 3. Right to
Free Course
for Trade in

law relating to freedom in disposing of either
labour or capit?!, or both, is included. Every
person has a right under the laiv, as betzveen him
and his fellow subjects, to full freedom in dis-
posing of his ozvn labour or his ozvn capital
according to his ozvn will. It follows that
every other person is subject to the correlative
duty arising therefrom, and is prohibited from
any obstruction to the fullest exercise of this
right which can be made compatible zvith the
exercise of similar rights by others. Every
act causing an obstruction to another in the
exercise of the right comprised within this
description — done, not in the exercise of the
actor's own right, but for the purpose of obstruc-
tion — would, if damage should be caused thereby
to the party obstructed, be a violation of this
prohibition ; and the violation of this prohibition
by a single person is a wrong, to be remedied
either by action or by indictment, as the case
may be. It is equally a wrong whether it be done
by one or by many — subject to this observ^ation,
that a combination of many to do a wrong, in
a matter where the public has an interest, is a
substantive offence of conspiracy. It is equally
a wrong, whether the obstruction be by means
of an act unlawful in itself, on the part of the
party obstructing, or by means of an act not
otherwise unlawful.



Whether an act which does obstruct is un-
lawful seems to me to depend, under some
circumstances, on the purpose of the actor : an
example will help to explain my meaning. In
R. V. Rowlands (5 Cox C. C. 436) ^ some of the
defendants gave refreshment, or money, or advice
to workmen going to the factory of Messrs.
Perry, and thereby induced them to go away.
The gift in each case might be for a purpose
of beneficence towards the receiver, and might
be lawful. But if it appeared that the refresh-
ment produced incapacity, and the money
paid the railway fare of a stupified man to an
unknown place of concealment, and the persua-
sion deluded him into a railway carriage to
be carried to that place, where he was to be
abandoned, and if it further appeared that their
absence brought ruin on Messrs. Perry, the jus-
tification on the ground of beneficent intention

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Online LibraryWilliam ErleThe law relating to trade unions → online text (page 1 of 6)